Research On Litigation Right Of The Actual Constructor

In order to regulate the production and operation of the construction industry,to protect the right and interest of the migrant workers,and to guide the people's courts at various levels to properly handle relevant disputes,the Supreme People's Court made an institutional arrangement in 2004 by adopting a new judicial interpretation,which can solve the problems of the actual constructor in the construction industry.It points out that the actual constructor not only can claim the subcontractor or the illegal subcontractor by the principle of relativity of contract,but also can claim the contract letting party beyond the principle of relativity.The implementation of the judicial interpretation about the actual constructor,provides people's courts basic knowledge in such cases,which unified judicial application very well.However,the judicial interpretation didn't make exact meanings of the actual constructor,neither of the responsibility of the contract letting party and their legal status,so there are different understandings and judgments in judicial practice.And with the development of the construction engineering,problems of the institution on the actual constructor occurred constantly.We should clarify the basis of its application,find other ways to perfect the institution,so we can balance the rights and interests of all parties in the construction contract for construction project better.This paper is divided into five parts:The first part: clarify the concept of the actual constructor.From the judicial interpretation,we try to make clear about the connotation and denotation of the actual constructor,analyze its legal characteristics,especially emphasize on whether the labour contractors,migrant workers and internal contractors belong to the category of the actual constructor.The second part:discuss the theoretical basis of the actual constructor's litigation right.Primarily we should illustrate the relationships between the contract letting party,the contractor and the actual constructor.Then there are mainly four theories in the current academia,including of Factual Contract Relationship,Returning of the Unjust Enrichment,Right of Subrogation,Exception of the Relativity of Contract,andexplain each of them.The third part: explore the concrete content of the actual constructor's litigation right.Analyze the meaning and scope of responsibility of the contract letting party.The actual constructor should be strictly limited while using litigation right,and the contract letting party have the corresponding right to defense.The fourth part: reveal the problems existing in practice.Use specific cases of the people's court,to see how the institution of the actual constructor works.It truly protects the interest of the actual constructor,but still has numerous problems such as the contractor can easily escape from legal liability,the actual constructor abuse litigation rights frequently and so on.The fifth part: give some suggestions to improve the institution of the actual constructor's litigation right.We should improve the relevant provisions of judicial interpretation,clarify the concept and scope of each party,and set up a uniform standard for the reference to judge.At the same time,we also can change the way of payment for the project cost,and establish a wage protection system for migrant workers,so as to achieve the same effect as the institution of the actual constructor's litigation right.